LIBRARY OF CONGRESS 




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JReprinted from Harpers' Magazine for October, 1873, by Permission.] 
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THE JUDICIAL RECORD 



OF THE LATE 



CHIEF JUSTICE CHASE. 




By JOHN S. BEIS^SON, 

COUNSELLOR AT LAW. 



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'To be, and not to seem, is this man's maxim; 
His mind reposes on its proper wisdom. 

And wants no other praise ." q -r> 

.(EscHYLUS — " Seven Against Thebes^ 




NEW TOKK: 
BAKER, YOORHIS & CO., PUBLISHERS, 

66 NASSAU STREET. 

1882. 



LiDl-iMI-lY Ul- L/UNUHhSS 



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Copyright, 1873, 
By Ha£F£r & Bkothers. 



It has been often suggested that the republication of this 
paper in a form convenient for general circulation, would 
afford special gratification to the many friends and admirers 
of the late Chief Justice, while it could not fail to find a wel- 
come among professional readers in all parts of the country. 
This pamphlet is the result ; and if its pages shall contribute 
only to the pleasure of those whose wishes have called it fort^ 
the author will feel amply compensated. LER. 

Appended will be found the judgment of its merits ol ' 
late Hon. Reverdy Johnson, to whose criticism tlie orig. 
manuscript was submitted, together with the opinions form^' 
of it by other eminent jurists after reading the printed article ly, 

The thanks of the author are specially due to the Messrs. . 

Harper & Brothers for their kind permission to reprint. 

J. S. B. 

247 Broadway, 
New York, May 1, 1882. 



\ 



From the late Reverdy Johnson. 

Baltimore, June 20, 1873. 
My Dear Mr. Benson : 

I return to-day by express (Adams), your paper on the judicial life of 
Chief Justice Chase. You should have had it before, but that I was not 
able until to-day to have the whole of it read to me. It is written remark- 
ably well, and does full justice to the Chief. Should you put it in pamph- 
let form do me the favor to send me a copy. Yours truly, 

REVERDY JOHNSON. 



From Mr. "Justice MiLLER, of the Supreme Court. 

Supreme Court of the United States, 
Washington, March 12, 1882. 
My Dear Benson : 

I am glad to learn that your article in Harpers', on the Judicial Record 
of my friend the late Chief Justice Chase, is to be republished in pamphlet 
form. I read the article in the magazine with much pleasure, and thought 
it a well considered and sound view of that eminent man as chief justice of 
our court. I am glad it is to be made accessible to his numerous admirers. 

Very truly yours, 

SAMUEL F. MILLER 



1- 



From Ex-Justice Strong, of the Supreme Court. 

Washington, March 10, 1882. 
John S. Benson, Esq. 

Dear Sir : — I remember having read your article in Harpers' Monthly, 
on the judicial character of Chief Justice Chase, soon after its publication. 
I thought it then a discriminating and able presentation of the work of the 
Chief Justice, of the comprehensiveness of his views, and of the ability 
with which he enforced them. I thought it also a just exhibit of the fair- 
ness with which he addressed himself to the great public questions before 
the Supreme Court. Very respectfully yours, &c., 

W. STRONG. 



From Mr. Justice Bradley, of the Supreme Court. 

Supreme Court of the United States, 
Washington, April 9, 1882. 
John S. Benson, Esq. 

Dear Sir: — Your article in Harpers' Magazine, on the judicial record 
of Chief Justice Chase, struck me as very appreciative and just. He was 
certainly an instance of a great mind successfully turning into a new chan- 
nel of investigation in mature years. Your remarks as to the style of his 
opinions accord with my own views, which, I think, you will find expressed 
in the article " Salmon P. Chase," in Johnson's Cyclopedia. 

Very truly yours, 

JOS. P. BRADLEY. 



6 



From Mr. Justice Hunt, of the Supreme Court. 

Washington, Dec. 20th, 1873, 
Dear Sir: 

I have read your paper in Harpers' Monthly, on the judicial record of 
Chief Justice Chase, with much interest and instruction. It is a faithful 
and able presentation of the leading events in his judicial career, and a just 
illustration of his character. Very truly yours, 

WARD HUNT. 
John S. Benson, Esq, 



From Chief Justice Davis, of the Supreme Court, New York City. 
Supreme Court, Judges' Chambers, 

New York, April 15th, 1882. 
My Dear Mr. Benson : 

I have read your paper in Harpers' Monthly, entitled " The Judicial 
Record of the late. Chief Justice," with pleasure and profit. It is admira- 
bly written, and, I think, for the most part, accurate and just. 

The proposed republication in a separate and more convenient form, , 
-is, in my opinion, very desirable, as in that way you will be able to place 
.n the hands of the profession, and especially of its younger members, a 
work commendable for its style, brevity and faithfulness, from which all 
can derive instruction, and the still more valuable benefits that flow from 
the example of such an able and honest statesman and jurist as Salmon 
P. Chase. 

In haste, I am, truly, 

NOAH DAVIS. 
J. S. Benson, Esq. 



From Chief Judge Neilson, City Court of Brooklyn. 

Chambers. 
, The City Court of Brooklyn, N. Y., 
Brooklyn, Feb. 11, 1882. 
My Dear Sir: 

I beg to say that I have read with care — more than once — and with 

great interest and satisfaction, your paper on Judge Chase, in the magazine. 

It is of value to the judicial as well as to personal history, and well 

worthy of study and preservation. I am glad you had the time as well as 

the inspiration to write it. 

I held the Chief Justice in such reverence and loving remembrance, 
that, it seems to me, his services and character cannot be too often recalled 
and illustrated. 

With much respect, yours truly, 

J. NEILSON. 



THE JUDICIAL RECORD 

OF THE LATE 

CHIEF JUSTICE CHASE. 



On the opening of the Supreme Court of the United 
States, December 7, 1864, in the course of some remarks in 
reply to resolutions of respect for the memory of the late 
Chief Justice Taney, read by James M. Carlisle, Esq., a life- 
long friend, Mr. Justice Wayne, then senior Associate Justice 
of the Court, thus referred to the deceased in connection with 
his predecessor : " As his predecessor, our great Marshall, had 
been, he was made Chief Justice, having but recently held 
high political office. Both were leaders in support of the ad- 
ministration of which they had been cabinet officers." '•'^j 

^r 

Marshall, Taney and Chase. — A Remarkable Fact. . 

It is remarkable how aptly this language will apply to 
Chief Justice Chase. The same may be said of him with- 
out modification. And the parallel may extend still further 
as to all of them, and state what at first thought would 
seem to be an extraordinary fact — that neither of them ever 
sat upon the bench until elevated to the Chief Justiceship.* 
But in view of the great distinction which they each gained in 
that position, notwithstanding their previous lack of judicial 
service, it may perhaps be regarded as a question of some mo- 
ment whether, in the selection of persons for high judicial ap- 
pointment, care should not be taken to choose those who are 
not only eminent jurists as recognized by the profession, but 
who unite with that primary qualification those other public 
experiences and popular acquirements which cannot fail to 
give additional breadth and scope to judicial decision, and lend 
the attractions of superior grace and culture to the judicial 

* The same is true of Chief Justice Waite, whose opening career has well 
assured a fourth parallel of eminence. 



8 



THE JUDICIAL RECORD OF THE 



character. It is true there is a prejudice in the profession — 
and it is a wholesome one — against placing politicians on the 
bench. 

Who should be Judges. — Mr. Webster's View, and an 
Opposing One. 

Daniel "Webster once declared that he would have no one 
on the bench who was not always and altogether a judge. 
And there are many lawyers of to-day who concur in this sen- 
timent. But is it the correct view ? "Would those who enter- 
tain it have objected to Webster himself as a candidate for 
judicial honors ? Are there any to dispute that, could he have 
been prevailed upon to accept the Chief Justiceship, his ju- 
dicial record would have been more luminous for his vast ex- 
perience in the forum of constitutional debate and in the ad- 
ministration of public law as Secretary of State ? In other 
words, who will deny that "Webster's great mind was more and 
more expanded from year to year, and his gigantic intellect 
pll daily extended in its proportions and in its power, by the 
^pportunities for contact and contest with other great intel- 
lects of the country and of the world afforded him by his 
Senatorial career and the duties of the Foreign Office ? To 
deny this would be unreason, because a contradiction of the 
whole theory of mental development as admitted and estab- 
lished by the testimony of every known intelligence. How, 
then, shall any one say that he who is in all respects a great 
jurist will not be a greater man, and hence a greater judge, if 
superadded to his advanced proficiency in the law he be given 
all those other accomplishments with which the exercise of 
his abilities in public life will clothe him ? Any other rule 
would lead to the anomalous conclusion that knowledge and 
experience do not impart wisdom, and, by a parity of reason, 
to the absurd hypothesis that the more a man knows the less 
he is qualified for responsible office. Where, then, is the 
ground for prejudice against a great lawyer as a judge because 
he has become greater than a great lawyer by acquiring the 
qualifications of a statesman ? But further discussion of this 
subject would seem idle ; and without assigning additional 
grounds for the belief that increase of knowledge is the exalta- 



LATE CHIEF JUSTICE CHASE. 9 

tion of the mind and the endowment of wisdom, it will be 
maintained as sound judgment, founded alike in reason and 
experience, that a great jurist who has had the opportunity and 
ability to achieve distinction in the field of statesmanship), and 
lias thus enlarged his views of the functions of government 
and its relations to society, and gained a broader knowledge of 
the attributes and office of the law, is thereby further recom- 
mended for the bench, and entitled to claim special merit and 
fitness ; and that exclusion from the bench for political reasons 
should extend only to mere politicians, whose public reputa- 
tions are in no part founded upon or owing to any distinction 
at the bar or in the lore and science of the law, and not to 
those who are equal to the greatest as jurists, and wise over 
all as statesmen, 

A Conclusive Test. 

An unanswerable argument, derived from experience, in 
favor of this position, is the judicial record of the three Chief 
Justices whose names have been mentioned. They were all, 
when appointed, politicians ; or, to use the word in its higher 
acceptation, they were all statesmen, without other than pro- 
fessional reputations as jurists. Yet neither of them was ever 
excelled in those rare qualities which distinguish the great 
judge, nor exceeded in the high attainments which are his 
qualification. Learned in the law they were, and equally 
learned in politics, in literature, and in the sciences. Without 
the first accomplishment they would not have consented to ac- 
cept the place, and without the others they would not have 
shone so conspicuously in it. The great reputations they earned 
as judges were, without doubt, due, more than to all other 
causes, to their profound knowledge of the world, and practi- 
cal acquaintance with the details of government, obtained in the 
public service as representatives of the people, and as officers 
and ministers of state. In the various political stations which 
they filled they acquired that intimate knowledge of the work- 
ings of our coinplex system of government, of the relations of 
the several co-ordinate branches to each other, and of the whole 
to the States which compose it, which enabled them as judges so 
to adjust the net-work of the fabric — the law — and so to apply 
3 



10 THE JUDICIAL RECORD OF THE 

its spirit as to harmonize the parts of the system, and give 
effect to all those conetitiitional checks and balances which 
were devised and intended by the framers to produce and se- 
cure a proper equilibrium of jDower, and thus insure duration 
— the primary object of all government. 

Consequences of a Lack of Public Experience. 

And i£ is owing to the general deficiency in such public 
knowledge on the part of the judges of the inferior courts, 
both State and Federal, that we have the frequent conflict of 
jurisdiction between the authorities they respectively repre- 
sent, from which the Union has suffered so much in the past, 
and has so much to fear in the future. On the one hand, a 
Federal question is not recognized where it exists ; and, on the 
other hand, one is seen where it does not exist. Jurisdiction 
is assumed and exercised in both cases, judgment is entered, 
and the result is a certain clash in the execution, if the right 
has a champion, and, if not, the inevitable enforcement of 
error. The judges are, in many instances, remarkable only for 
their unfitness, and seem to have no conception that the petty 
issues of their obscure tribunals form part of a vast system of 
jurisprudence which, in some form and in some degree, is 
affected by their determinations, but proceed as if their juris- 
diction was independent and final, and their decisions direct 
emanations from the fountain of justice. 

The Gravity of the Situation when Mr. Chase was 
Appointed. 

ISTever was a man, with or without judicial training, as- 
signed a more difficult trust, at a more critical period, than was 
confided to the late Chief Justice by his appointment as head 
of the judiciary of the United States. And few have brought 
to the performance of grave judicial duty higher discretion 
and firmness, greater ability and moderation, or serener self- 
possession than did he. These enabled. him from the first to 
fulfill promptly every requirement of the position, and to bear 
himself as one accustomed to its restraints. He was at home 
in the traditional gown from the day he took his seat, and his 
manner was as of one " always and altogether a judge." 



LATE CHIEF JUSTICE CHASE. 11 



His Rank as a Lawyer. 



Although Mr. Chase had never claimed great distinction as 
a lawyer, he had for many years been regarded as an able jurist 
by those acquainted with his professional career and competent 
to judge. And being endowed with physical strength equal 
to his mental energy, he was no sooner commissioned than he 
entered upon the work of preparation with all the application 
of which he was capable, and with a firm resolution to do 
honor to the place, rather than to be honored by it. With this 
determination he studied the best models of judicial style, fa- 
miliarized himseK with any principle of law his practice had 
not encountered, and mastered the practice, rules and decisions 
of the tribunal over which he was to preside. And so well 
did he accomplish the task that the bar of the court and his 
brethren on the bench were astonished to find his opinions at 
once, as one of the latter has expressed it, "models of judi- 
cial excellence." His knowledge of every department of the 
law was discovered to be deep and profound, and his acquaint- 
ance with precedents wide as the range of decisions. This was 
early remarked — so early that one year after his accession, 
when the writer of this paper first became familiar with the 
affairs of the court, the fact was already the wonder of the pro- 
fession, and the exclamation of his late political associates. 

His Model as a Judge. 

It is clear, from a close comparison of styles, that, unless 
nature endowed them with such similar mental organizations 
as to beget in their minds like processes of reasoning, his im- 
mediate predecessor, Chief Justice Taney, was his chosen 
model, and that from habitual study of his works he imbibed 
from him a manner of judicial composition strikingly identi- 
cal. There is in their judicial writings the same succinct state- 
ment of facts, the same directness in dealing with the main 
question in a case, and care to avoid irrelevant and immaterial 
matters suggested in the argument. There is the same skill in 
grouping, and order in arranging the subjects of discussion, and 
the same faculty of marshaling conclusions, so that they swell 
and increase in momentum as the opinion proceeds, and cul- 
minate in convincing logic as it concludes. There is the same 



12 THE JUDICIAL RECORD OF THE 

elegance of diction, force of expression, and ease and grace in 
passing from subject to subject. There is the same concentra- 
tion, the same precision and power, and a like absence of ab- 
ruptness, coarseness, and incongruity. There is no assertion, 
no declamation, no prolixity, but, in brief, the presence and 
absence of everything required to make their opinions exact 
parallels of judicial completeness and intellectual mastery. 

It is not claimed that this eminent jurist was his special 
study, admiration, and example because he did not lind great 
excellence elsewhere — for to do so would be to do injustice to 
his estimate of others, and violence to truth — but because Mr. 
Taney's terse, unimaginative style peculiarly recommended it- 
self to his taste as a forcible and compact form of expression 
for judicial utterances, better adapted to the uses of reason and 
logic than the more rhetorical and embellished forms. Mar- 
shall was also an ideal of his of what a judge should be ; but 
his more elaborate and metaphorical style had not the symjia- 
thetic charm for him which he found in the sim])le, synthetic 
sentences of Taney, and which are so remarkably reproduced 
in his own writings. 

His Appreciation of the Trust. 

Soon after Mr. Chase's appointment he remarked to a friend 
that he was to take the place left vacant by Marshall and Taney, 
and referred to them as two of the greatest judges the world 
had yet prodnced, adding that he should have to be a hard 
student to acquit himself creditably as their successor. But 
that he has acquitted himself so well, and with such distinction 
as will give his friends no cause to fear in this behalf, while it 
will give his own successor ground for apj^rehension lest there 
shall 1)0 too great a contrast in the records of the two incum- 
bencies, is beyond doubt ; and this fact should have great 
weight with our good President when casting about for the 
proper qualifications with which to fill the place. 'No other 
position in the country bears any relation to this in importance, 
as the great respect of the people for the ofiice and their reli- 
ance upon the court attest ; and if there be those who would 
assume it unhesitatingly, without distrust of their abilities, they 
are, of all others, the very persons who are not competent to 



LATE CHIEF JUSTICE CHASE. 13 

its duties. The country has ah'eacly suffered too much from a 
lamentable, humiliating, and dangerous lack of character, ca- 
pacity, and integrity on the bench ; and it is shown by experi- 
ence that these failings commonly go together, and are to be 
found associated in the same person. And of the two, the fail- 
ure of judicial integrity is least to be feared, for it is readily 
detected, and is always guarded against ; but a lack of capacity 
is the more to be dreaded, because, unless absolutely disqual- 
ifying, it is never remedied, and constantly weakens and dis- 
credits the canons of the law. 

Importance of Judicial Style and Clearness. — Common 
Law Excellences. 

Concise language and perspicuity in the statement of prem- 
ises and conclusions were the glory of the commondaw jurists, 
and have immortalized many names in the annals of judicature. 
And these excellences of style and brevity should be the emu- 
lation of those in our country who are charged witji the inter- 
pretation and application of statutory enactments, in the admin- 
istration of which there is much room for misapprehension and 
miscarriage, because of the great diversity of subjects for adju- 
dication. But there seems to be little effort on the part of a 
great majority of our judges to acquire those virtues of accu- 
racy and explicit enunciation wdiich characterized and still 
adorn English jurisprudence ; and the consequence is that it is 
an every-day occurrence in our courts to find opposing counsel 
citing the same case as an authority in support of antagonistic 
theories, because its points are so carelessly put and its conclu- 
sions so loosely drawn that they cannot be understood, and may 
be construed to meet the necessities of counsel at pleasure. 
This is a shame to the profession which produces the bench, 
and to the bench, wdiich, in turn, educates the profession. And 
to effect improvement in the courts of original jurisdiction it 
is in the highest degree essential that the appellate tribunals, 
and especially those of last resort, shall furnish models for their 
study, instruction, and elevation. 

Responsibility for Judicial Appointments. 
In view of all this, is it possible to conceive of higher re- 
sponsibility than devolves ujDon him who is charged with the 



14 THE JUDICIAL RECORD OF THE 

duty of appointing judicial officers ? There is some excuse for 
the people, under the elective system, if they fail to secure the 
best men for the bench ; for they are not fitted to judge of 
the qualifications of candidates and to choose between them ; 
and if they were, there is no adequate opportunity for confer- 
ence in respect of public matters open to the mass of electors. 
And this is probably the secret of the judicial incompetency, 
grossness, and corruption which prevail in many of our large 
cities. But there is no apology proper to be ofi'ered for the 
elevation of other than the most eminent ability and unques- 
tioned purity to the bench, where the selection is confided to 
an intelligent Executive. He has at command the means of 
ascertaining all the necessary facts touching the fitness of those 
whose qualifications are considered, and need not fail in his 
duty to the public. 

Momentous Issues which awaited the new Chief Justice. 

When ]5lr. Chase entered upon the duties of Chief Justice 
the country was in the crisis of its existence. The Union was 
threatened with destruction by the attempted withdrawal of 
several of its members, whose people maintained that the Con- 
stitution was a compact for purposes of security against a for- 
eign foe only, and was not a voluntary bond on the part of the 
States to enforce their own involuntary adherence to the gen- 
eral government. And whether the power which had been 
assumed and exercised by the legislative and executive branches 
to coerce the seceding States, and to preserve the integrity of 
the Union by force, was lodged in the government by virtue of 
any provision or intendment of the Constitution, was yet to be 
authoritatively declared by the other co-ordinate branch. Pre- 
ceding and following this was a multiform variety of other ques- 
tions, preliminary and resultant, scarcely less important, raised 
by the war, which the developments of peace had never evolved 
for adjudication, and which were then pressing at the bar of 
the court for that final determination which was to establish a 
memorable page of precedents for the future government of 
the country and guidance of the world. Among the earliest 
of these was a long list of prize and other cases, presenting 
every class of questions which could proceed from a condition 



LATE CHIEF JUSTICE CHASE. 15 

of civil war, iu which the Chief Justice rendered a series of 
decisions which alone would have placed him in the front rank 
of jurists, and insured a meed of fame falling to the lot of few 
judges, and sufficient to fill the measure of an honorable am- 
bition. 

The Milligan Case. — Military Commissions in States at 

Peace. 

In his second year the great Milligan case was decided, al- 
though the formal opinions were not delivered until the com- 
mencement of the next term. 

Milligan, a citizen of Indiana, was arrested, tried, and con- 
victed by military commission of conspiring against the gov- 
ernment, and sentenced to be hung on the 19th of May, 1865. 
Habeas corpus was issued, and the Circuit Court divided in 
opinion on the questions presented, and certified them to the 
Supreme Court for answer. Mr. Justice Davis delivered the 
opinion of the court, which, by its conservative character and 
spirit, gave him the prominence he attained as a candidate for 
the Presidency before the Cincinnati Convention. It was, in 
substance, that a person who is a resident of a loyal State, 
where he is arrested, who was never a resident of any State en- 
gaged in rebellion, nor connected with the military or naval 
service, cannot be regarded as a prisoner of war ; nor, even 
when the privilege of the writ of haheas corpus is suspended, 
be tried (the courts being open) otherwise than by the ordinary 
courts of law. The constitutional guaranty of trial by jury is 
intended for a state of war as well as for a state of peace ; and 
military commissions, organized during the late war in a State 
( not invaded and not engaged in rebellion, in which the Federal 

courts were open and in the proper and unobstructed exercise of 
their judicial functions, had no jurisdiction to try, convict, or 
sentence for any criminal offense a citizen who was neither a 
resident of a rebellious State, nor a prisoner of war, nor a per- 
son in the military or naval service. And Congress could not 
invest them with any such power. 

The Power of Congress. 

To all of this the Chief Justice assented, except as to the 
declaration that it was not in the power of Congress to author- 



\ 



16 THE JUDICIAL RECORD OF THE 

ize such a commission to do such an act at such a time, and ex- 
cept as to the conclusion that when the privilege of the writ of 
habeas cor])us is suspended there are no cases in which trial and 
punishment by military commission, in States where civil courts 
are open, may be authorized by Congress. In a dissenting opin- 
ion as to these particulars, citing the case of Indiana as a mili- 
tary district and an invaded State, he said : 

" We cannot doubt that in such a time of public danger Congress 
had power under the Coiistitution to provide for the organization of 
a military commission, and for trial by that commission of persons 
engaged in the conspiracy. The fact that the Federal courts were 
open was regarded by Congress as a sufficient reason for not exercis- 
ing the power; but that fact could not deprive Congress of the right 
to exercise it. Those courts might be open and in the unobstructed 
exercise of their functions, and yet wholly incompetent to avert 
threatened danger, or to punish, with adequate promptitude and cer- 
tainty, the guilty conspirators. 

" In Indiana the judges and officers of the courts were loyal to the 
government. But it might have been otherwise. In times of rebel- 
lion and civil war it may often happen, indeed, that judges and 
marshals will be in active sympathy with the rebels, and courts their 
most efficient allies." 

Mr. Justice Davis had said in his opinion, that civil liberty 
and this kind of martial law could not endure together — that 
the}"^ were in irreconcilable antagonism, and in the conflict one 
or the other must perish ; for the nation cannot be always at 
peace, and has no right to expect that it will always have wise 
and humane rulers, sincerely attached to the principles of the 
Constitution ; and that the time might come when wicked and 
ambitious men would hll the place once occupied by Washing- 
ton and Lincoln ; and if this right were conceded, and the ca- 
lamities of war should befall us again, the dangers to human 
liberty are frightful to contemplate ; and that if our fathers had 
failed to provide against just such a contingency, by rendering 
it impossible for an unscrupulous Executive to usurp the gov- 
ernment, they would have been false to the trust reposed in 
them. 

A Wide Variance of Judicial Opinion. 

Here was a wide difference in judicial opinion on the sub- 
ject of the distribution and restriction of the powers of gov- 



LATE CHIEF JUSTICE CHASE. lY 

ernment under the Constitution, and upon the question of the 
sources of danger to the Union, and which very evenly divided 
the court. The Chief Justice and three associate justices pre- 
ferred to trust the exercise of a dangerous but necessary power 
in time of war to the Executive chosen by the whole loyal 
people, rather than to confide it to the discretion of a sectioiml 
tribunal which, in consequence of secret disloyalty, might de- 
cline to enforce it. And they believed the framers of the re- 
public had entertained this view, and so constructed the or- 
ganic law as to give it effect. Mr. Justice Davis and four of his 
associates saw no such danger of a failure of justice in the 
courts at such a time as would justify the investiture of the 
President with arbitrary authority, which was liable at any 
moment to be unduly exerted; and they believed that the 
fathers had provided against such executive supremacy. And 
it remains to be seen by future gener?'' ' .us which is correct, 
the intimation of danger from executive usurpation, or the ap- 
prehension of evil from a corrupt or disloyal judiciary ; and 
also, by inference, which of these was the contingency fore- 
seen and provided against by the authors of the Constitution. 
The decision was on the side of the judiciary ; the dissent in 
favor of the executive. Time only will try the conclusions. 

Effect of Life Associations Upon the Judgments of Men. 

It is interesting to note in a case like this the marked influ- 
ence of life associations upon the minds even of the best and 
wisest of men, as affecting their judgments through their sym- 
pathies. Judge Davis, raised and remaining in the atmosphere 
, of the courts, and further allied to them by a considerable ju- 
dicial term, was firm in the assertion of civil jurisdiction, and 
quick to repel attempts at executive encroachment ; and long 
accustomed to combat the assumptions of the political depart- 
ments, he was naturally distrustful of their tendencies and 
jealous of their power. 

The Chief Justice, although then honoring supreme judicial 
position, had early entered and late remained in the political 
departments, and became as fully imbued with their sympathies 
and aspirations as had Judge Davis with the spirit of the ju- 
dicial department. It was equally natural, therefore, that 



18 THE JUDICIAL RECORD OF THE 

while striving to be, and believing himself wholly unbiased, 
he should respond to kindred inipulses, and that regarding 
his experience in the j)ohtical departments as best qualify- 
ing him to judge of the necessity of extreme measures in 
conjunctures of extreme peril, and feeling that the decision 
was a blow to the efhciency of the government, he should be 
impelled to arraign the principle affirmed by a majority of the 
court as an insufficient postulate, and to declare his conviction 
that the wisdom of the foundei-s accorded with this view, and 
intended that such a power should reside in the executive, and 
prevail in the emergency of war when the public safety re- 
quired it. And for the whole of his professional life having 
suffered defeat at the bar of the courts,* by alleged judicial 
evasion, in attempts to gain recognition of certain political 
rights, now established by revolution, which he believed to be 
clearly constitutional, it is not surprising that he should doubt 
the certain efficiency of the civil judiciary at any time, and for 
that reason withhold his assent to the proposition that it shall 
be sole arbiter of justice in time of public danger. 

The Executive and the Judiciary. — The Chief Justice 
Inclines to the Side of the Former. 

Fresh from the absorbing consultations of the executive 
council, and conscious of its integrity aiid devotion to liberty, 
as tested by his own experience and established by results, he 
could not permit even its future patriotism to be questioned 
from the bench, without pointing out to the latter the danger 
of its own defection. Had it been his good fortune to live to 
the ripe age of his predecessor and judicial prototype, it is 
possible, and even probable, that thirty years of term routine 
would have deadened the old and begotten in him uew sympa- 
thies, more in harmony with the dull monotony of the bench, 
but less likely to inspire that wholesome interest in public 
questions and watchful vigilance of public affairs which pre- 
serve the animation and usefulness of the judge, renovating 
his mind, augmenting his knowledge, and giving strength, 
vigor, and comprehensiveness to his decisions. 

* In contests under the Fugitive Slave Act — Mr. Chase being always the 
champion of the fugitive who had escaped across the border to Cincinnati, and 
there sought to resist rendition 



LATE CHIEF JUSTICE CHASE. 19 



Judicial Character and Habits. — Danger of Devotion to 
Exclusive Subjects. — The Secret of Intellectual Power. 

And without some attention to public matters, some inter- 
est in current events, there is '^inger of the approach of that 
destroying malady of those who would be " altogether judges," 
which perhaps may be not inaptly termed judicial crystalliza- 
tion — a sort of metempsychosis of the mind by which it passes 
from the state of personal consciousness and natural sympa- 
thies to a condition of morbid abstraction and abnormal de- 
votion, and relinquishing all other aims and aspirations as 
unworthy, heroically dedicates itself to the perpetual contem- 
plation of judicial ends and essences, as if their proper study 
required a sacrifice, and they were arbitrary and abstract prin- 
ciples, perfectly ascertained, and to be nniformly applied as 
contained in the repositories of judicial learning, and were not 
simply the collected results of human experience, reduced to 
systems of government and rules of conduct ever undergoing 
modification and change in the progi'ess of civilization, and to 
be as carefully sought and as profitably studied on the latest 
pages of the open volume of life, as in the dusty tomes of 
libraries whose precedents perish wnth their coverings along 
the pathway of the generations. Instances of such consecra- 
tion and absorption are frequent, but the cause is generally 
misapprehended. That habitual absence of mind which is 
popularly regarded as an indication of fixed and fathoming 
thought, is but the listless reverie of mental ennui or enerva- 
tion, proceeding with legitimate certainty from the strain of a 
mind unrelieved or overwrought in the investigation and expo- 
sition of exclusive subjects. Strong, active minds, invigorated 
by diversified thought, have no such infirmity. And busy 
men of the world experience no such weakness in grasping the 
actual of life's concerns. It is the ofispring of weariness and 
apathy, and wherever detected is an evidence of impaired fac- 
ulties, of diminished powers, of insipient intellectual retrover- 
sion. If it would be avoided by the bench, the functions of 
the judge and the faculties of the man must be equally and 
evenly exercised, and the senses of the body must be indulged 
with healthful excitement, even if in direct opposition to the 



20 THE JUDICIAL RECORD OF THE 

inclinations or prejudices of the mind. The soul draws its 
inspiration from the senses, which it refines and elevates ; and 
when, in obedience to the behests of virtue, it seeks to gain 
the ascendency by denying them proper gratification, it does 
but waste its own vitality, weaken its power over the propen- 
sities, and by precipitating psychomachy, destroy all. To pre- 
serve mens sana in corpore sano, sustain the judge and succor 
the man, there must be equilibrinm of the mental and physical 
forces, and union of the judicial and personal cliaracters. 
Where this rule occurs there is true greatness ; where it does 
not, there is chance result. 

The Test Oath Cases. — Rebel Theology relieved from 
Proscription. — Religious Freedom. 

Following the Milligan case came the scarcely less noted 
Test Oath cases from Missouri and Arkansas, which resulted 
in a decision against the validity of such an oath as a means of 
establishing the fact of loyalty, on the ground that, under the 
form of creating a qualification or attaching a condition, the 
States cannot in efl:ect infiict punishment for a past act which 
was not punishable when the act was committed, the court 
holding the new constitution of Missouri, requiring clergymen 
to take an oath that they had never given aid or comfort to or 
sympathized with tlie rebellion, as a condition precedent to 
their entering upon the duties of their vocation, and the act of 
Congress of 1865, prescribing a similar oath to be taken by 
lawyers before being permitted to practice in the Federal 
courts, to be in this ex post facto in their operation, and void. 

The Chief Justice Again Leans to the Side of Strong 

Government. 
In these cases the Chief Justice again took the unpopular 
side, again leaning to the side of the government, and con- 
curred in an opinion written by Mr. Justice Miller, maintain- 
ing that the purpose of the oath prescribed in each case was to 
require loyalty as a qualification, and not to punish past acts 
of disloyalty, and that it was therefore within the competencj'^ 
of State authority to imj)08e. And it was said that the ex 
post facto principle which the majority of the court had dis- 
covered in the laws to be affected by their decision could 



LATE CHIEF JUSTICE CHASE. 21 

" only be found in those elastic rules of construction which 
cramp the powers of the Federal Government when they are 
to be exercised in certain directions, and enlarge them when 
they are to be exercised in others." " J^o more striking exam- 
ple of this could be given," it was added, " than the cases be- 
fore us, in one of which the Constitution of the United States 
is held to confer no power on Congress to prevent traitors 
practicing in her courts, while in the other it is held to confer 
power on this court to nullify a provision of the constitution 
of the State of Missouri." Touching the sanctity of the min- 
isterial office, and the inviolability of religious freedom in this 
country, which had been dwelt upon at length by counsel in 
the Missouri case, it was said that no restraint had been placed 
by the Constitution of the United States upon the action of 
the States in respect of the subject of religion ; but that, on 
the contrary, in the language of Judge Story, " the whole 
power over the subject of religion is left exclusively to the 
State Governments, to be acted upon according to their own 
sense of justice and the State constitutions." The majority of 
the court having held that the pardon of the President re- 
lieved the petitioners from all disal)ilities of whatever charac- 
ter, the dissenting opinion, conceding the fullness of the par- 
doning power, answered that if the oath prescribed was not a 
punishment, but merely a requirement of loyalty, as held there- 
in, then the pardon of the President could have no eiiect to 
relieve parties from taking it. If it was a qualification which 
Congress and the States have a right to require, the President 
could not, by pardon or otherwise, dispense with the law re- 
quiring such a qualification. 

The writer remembers to have seen the Chief Justice by 
impatient gestures put away interruptions by officers of the 
court, and give undivided attention as the Hon. Reverdy John- 
son, then a Senator and now a private citizen, the Hon. M. H. 
Carpenter, then a private citizen and now a Senator, and 
David Dudley Field, Esq., then and now a private citizen, ex- 
erted their high powers in behalf of the petitioners in these 
cases and of the principle involved ; and distinctly recalls the 
expressions of disappointment which fell from counsel when 
it was known by the decision that he was one of those who sus- 



% 



22 THE JUDICIAL RECORD OF THE 

tained the " oath of loyalty " in Missouri, and the " iron-clad 
oath " in the Federal courts. 

The Great Question of the Age. — Power of the Govern- 
ment TO Maintain the Union. 

Then came the great question, paramount over all, of the 
power of the government under the Constitution to preserve 
itself and maintain the Union by force against the will of the 
States. Not so important because of the fact of preser- 
vation, for that was already accomplished, hut because it was 
to be determined whether the success of the government was 
the result of the exercise of its legitimate powers, and there- 
fore the triumph of a precious right, or was the chance event 
of the use of unjust, arbitrary, and oppressive measures, exe- 
cuted by superior force, in violation of the Constitution and 
the reserved rights of the States, and therefore the consum- 
mation of a grievous wrong. And in view of the incalculable 
effect which the decision of this momentous question, what- 
ever it should be, was to have upon the destinies of man in its 
influence upon the judgment of the nations of the merits of 
popular government, it is justly entitled to be regarded as the 
most superlative question ever j)resented for the consideration 
of an earthly tribunal. Its solution was to increase the con- 
fidence of the world in the permanence of repubhcan institu- 
tions, and accelerate their general adoption by demonstrating 
that their organization is not inconsistent with strength and 
stability, or it was to subject them to reproach and repudiation 
as conferring no protection on the person and property of the 
citizen, because affording no guaranty of perpetuity. Upon it 
depended the continuance of our republic as a constitutional 
government, and upon that contingency depended the further 
progress of liberty and equality among men. Neighboring 
monarchies looked on with malignant satisfaction, hoping and 
expecting to see the last experiment of free government perish 
forever, and their rulers secretly coalesced to accomplish that 
result. Patriots every where desponded and freedom lan- 
guished, while kings and courtiers rejoiced and crowns were 
reassured. 



LATE CHIEF JUStlCE CHASE. 23 



The Swift Conclusions of the Enemies of the Republic. 

The collapse of the republic was from the first regarded as 
certain by its enemies, if not by successful revolution, still as 
surely by a fatal variance between its several departments, 
leading to such a departure by the executive from the consti- 
tutional interpretations of the judicial branch as would paralyze, 
and at last destroy it. If, exulted they, the judiciary should 
hold the Union under tlie Constitution to be" based upon the 
consent of the States, and that these could withdraw at pleasure 
and terminate its existence beyond the rightful authority of the 
Federal power to sustain it by force, and the government should 
accept that judgment and respect the decision, there is an end 
of the Union. If the government should disregard the judg- 
ment and override the judiciary, it would be but the first step 
of a series by which it would indubitably glide away from its 
base and ultimately become the worst form of despotism — a 
military dictatorship. And if, on the other hand, the judiciarv 
should deny the right of secession, and sanction the course of 
the political dejjartments, it would be a forced construction of 
the Constitution, infinitely worse than the forced preservation 
of the Union without it, amounting to a voluntary abdication 
of justice, and permitting the final overthrow of liberty by the 
strong arm of centralization, whose encroachments would in 
the end result in usurpations more odious and oppressive than 
monarchy itself. 

Thus powers professing to be friendly, but in truth actuated 
by ill-concealed enmity, prematurely consigned our palladium 
to anarchy and oblivion in any event, beyond conceivable 
doubt, and congratulated themselves and the cause of royalty 
upon the downfall of the American republic and the eternal 
extinction of the federative principle. But, happily for us 
and for mankind, the result was different. Before the ques- 
tion was reached by the courts the danger from revolution was 
passed, and the only solicitude was that the means adopted to save 
the country should be justified by judicial sanction. And 
when at last the question was decided, the judiciary upheld the 
construction placed upon the Constitution by the executive and 
legislative branches of the government, not in obedience to 



24 THE JUDICIAL RECORD OF THE 

popular clamor, but on grounds which are unanswerable in any 
forum, and which command the respect and confidence of 
Federal and "Confederate" citizens alike. The three depart- 
ments were in harmony upon tlie question of the character of 
the government and the nature of its powers, and in accord 
as to the means invoked to preserve and enforce them. 

The Constitutional View of the Relation of the States. 

The case of Texas v. White presented the question in a 
direct form, and the Chief Justice delivered the opinion of the 
court, from wliich we take three consecutive paragraphs of con- 
clusive reasoning, as follows : 

'• The Union of the States never was a purely artificial and arbi- 
trary relation. It began among the colonies, and grew out of com- 
mon origin, mutual sympathies, kindred principles, similar interests, 
and geographical relations. It was confirmed and strengthened by 
the necessities of war, and received definite form and character and 
sanction from the Articles of Confederation. By these the Union 
was solemnly declared to ' be perpetual.' And when these articles 
were found to be inadequate to the exigencies of the country, 
the Constitution was ordained ' to form a more perfect Union.' It is 
difficult to convey the idea of indissoluble unity more clearly than by 
these words. What can be indissoluble, if a perpetual Union made 
more perfect, is not 1 

" But the perpetuity and indissolubility of the Union by no 
means implies the loss of distinct and individual existence, or of th6 
right of self-government by the States. Under the Articles of Con- 
federation each State retained its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right not expressly 
delegated to the United States. Under the Constitution, though the 
powers of the States were much restricted, still all powers not dele- 
gated to the United States nor prohibited to. the States are reserved 
to the States respectively, or to the people. And we have already 
had occasion to remark at this term that ' the people of each State 
compose a State, having its own government, endowed with all 
the functions essential to a separate and independent existence,' and 
that ' without the States in union there could be no such political 
body as the United States.' (Lane v. Oregon.) Not only, there- 
fore, can there be no loss of separate and independent autonomy to 
the States through their union under the Constitution, but it may be 
not unreasonably said that the preservation of the States and the 
maintenance of their governments are as much within the design and 
care of the Constitution as the preservation of the Union and the 
maintenance of the national government. The Constitution, in all 
its provisions, looks to an indestructible Union, composed of inde- 
structible States. 



LATE CHIEF JUSTICE CHASE. 25 

" When, therefore, Texas became one of the United States, she 
entered into an indissoluble relation. All the obligations of per- 
petual union, and all the guaranties of republican government in the 
Union, attached at once to the State. The act which consummated 
her admission into the Union was something more than a compact ; 
it was the incorporation of a new member into the political body. 
And it was final. The union between Texas and the other States was 
as complete, as perpetual, and as indissoluble as the union between 
the original States. There was no place for reconsideration or re- 
vocation, except through revolution or through the consent of the 
States." 

What could be more clear, concise, and convincing than 
this ? How simple the logic ! " What can he indissoluble, if 
a perpetual union made more 'perfect, is iwt V How grand 
the conclusion ! " The Constitution, in all its provisions, looks 
to an indestructible Union, composed of indestructible States ^ 

The Effect of the Decision on the Destinies of Nations. 

Thus definitively was the great question settled. And fol- 
lowing it a thrill of joy went round the earth. The freest and 
best country known to man was saved to representative govern- 
ment, redeemed from reproach and justified before the world ; 
and wherever power is prescriptive and rights are prerogative, 
except as the gifts of princes, there were souls to rejoice. The 
oppressed in all lands felt that they had still a secure asylum, 
and republican subjects of Eastern kings and conquerors rapt- 
urously saw through the breaking clouds the triumphal arch of 
Freedom in the West — the bow of promise on the brow of 
Empire. Tliat there was such an ark of safety for human 
hopes and happiness as a composite republic, with a consti- 
tutional government operating directly upon the people irre- 
spective of sectional limits, entitled to their undivided allegi- 
ance, and clothed with adequate power to protect and defend 
itself against all foes, from within as well as from without, was 
an annunciation whicli shook thrones and gladdened continents. 
The suppressed republicanism of France and Spain asserted 
itself in answer to this invitation at the first opportunity, and 
the leagued assaults upon the unhappy republic south of us, at 
a time when the act was deemed safe by reason of our domestic 
difiiculties, was punished, and the blood and carnage of Maxi- 
milian's reign and fall were avenged. The same spirit openly 
4 



^ 



26 THE JUDICIAL RECORD OF THE 

declared itself in the limited and milder monarchy of Britain, 
and loyal subjects of the crown who had stealthily given aid and 
comfort to onr revolting States, and contributed to the fullest 
demand toward the success of the rebellion, now tremble at the 
signs of retribution at home and abroad. And the government 
which winked at their violations of public law, and connived with 
them to break the shield of democracy in America, and prop the 
crumbling dynasties of Europe, now shrinks with dismay from 
the contemplation of republican progress on the soil of sceptres, 
and hopes to stay the tide of revolution by encouraging still 
further contributions in the interest of monarchy, to sustain 
the armies of the Carlists in the field, and the agents of the 
Bourbons in the forum. 

Such are the fruits of our triumph. For who believes that 
had the rebellion succeeded, and our Union been dissolved, 
there would have been any tidings of re]3ublieanism in Europe 
to-day ? No one. On the contrary, it was and is the universal 
assent that the overthrow of the government of the United 
States would silence its advocates, stifle its principle, and rob 
the world of refuge and freedom of a home for centuries to 
come. 

Powers of de facto Governments. 

The next case of general interest, in point of time, was one 
of the first importance to the people of the South, involving as 
it did their entire business and social relations, by jeopardizing 
civil contracts made while subjected to Confederate authority. 
It was the case of Thorington v. Smith, from Alabama, deter- 
mining for its main question whether contracts for the payment 
of Confederate money, made during the rebellion between 
parties residing in the Confederate States, could be enforced in 
the Federal courts. The Chief Justice delivered the opinion of 
the court, and in the course of it, after defining the Confed- 
erate government as one of paramount force, said : 

" It seems to follow as a necessary consequence from the actual 
supremacy of the insurgent government as a belligerent within tlie 
territory where it circulated, and from the necessity of civil obedience 
on the part of all who remained in it, that this currency must be con- 
sidered in courts of law in the same light as if it had been issued by 
a foreign government temporarily occupying a part of the territory 



LATE CHIEF JUSTICE CHASE. 27 

of the United States. Contracts stipulating for payment in this cur- 
rency cannot be regarded, for that reason only, as made in aid of 
the foreign invasion in the one case or of domestic insui'rection in 
the other. They have no necessary relations to the hostile govern- 
ments, whether invading or insurgent. They are transactions in the 
ordinary course of civil society, and though they may indirectly and 
remotely promote the ends of the unlawful government, are without 
blame, except when proved to have been entered into with actual in- 
tent to further invasion or insurrection. We cannot doubt that 
such contracts should be enforced in the courts of the United States, 
after the restoration of peace, to the extent of their just obliga- 
tions." 

Thus the necessary dealings of the people over whom the 
Confederate States exerted government were sustained, the 
obligations of contract left unimpaired, and a conclusion 
avoided which would have overturned all titles and destroyed 
all ownership at the South, and seriously have disturbed the 
well-being of society. 

The Legal Tender Cases. 

Public familiarity with the Legal Tender cases, in conse- 
quence of the direct effect of tlie decision upon all the affairs 
of the people, renders an extended statement of the points 
decided unnecessary. In Hepburn v. Griswold, the Chief Jus- 
tice delivered the opinion of the court, holding, in effect, that 
there is no grant of power in the Constitution, express or im- 
plied, authorizing Congress to make any description of credit 
currency a legal tender in payment of debts. These v^iews of 
the Chief Justice took the country somewhat by surprise, as it 
was generally supposed that the Legal Tender act was his 
special measure, as a financial necessity, when Secretary of the 
Treasnr3^ And in the subsequent cases of Knox v. Lee and 
Parker v. Davis, overruling this decision (the court being dif- 
ferently constituted), Mr, Justice Strong, who delivered the 
opinion, after holding substantially that the power to issue 
legal tenders exists, because such notes may at anytime become 
a necessity to the end of preserving the government, adverted 
to Mr. Chase's agency in their issue, in this instance, thus : 

"It is an historical fact that many persons and institutions refused 
to receive and pay those notes that had been issued, and even the 
head of the Treasury represented to Congress the necessity of mak- 



28 THE JUDICIAL RECORD OF THE 

ing the new issues legal tenders, or, rather, declared it impossible to 
avoid the necessity." 

Mr. Chase as Secretary of the Treasury and Chief Justice. 
— Triumph of the Magistrate over the Minister. 

The answer of the Chief Justice to this representation is 
all in respect of these cases which remains of interest in this 
connection. It was as follows : 

" The reference made in the opinion just read, as well as in the 
argument at the bar, to the opinions of the Chief Justice, when 
Secretary of the Treasury, seems to warrant, if it does not require, 
some observations before proceeding further in the discussion. 

" It was his fortune at the time the legal tender clause was in- 
serted in the bill to authorize the issue of United States notes, and 
received the sanction of Congress, to be charged with the anxious 
and responsible duty of providing funds for the prosecution of the 
war. In no report made by him to Congress was the expedient of 
^ making the notes of the United States a legal tender suggested. He 
urged the issue of notes payable on demand in coin, or receivable 
as coin in payment of duties. When the State banks had suspended 
specie payments, he recommended the issue of United States notes, 
receivable for all loans to the United States and all government dues 
except duties on imports. In his report of December, 1862, he said 
that ' United States notes receivable for bonds bearing a secure 
specie interest are next best to notes convertible into coin,' and after 
stating the financial inejisures which in his judgment were advisable, 
he added : ' The Secretary recommends, therefore, no mere paper 
money scheme, but, on the contrary, a series of measures looking to 
a safe and gradual return to gold and silver as the only permanent 
basis, standard, and measure of value recognized by the Constitu- 
tion.' At the session of Congress before this report was made, the 
bill containing the legal tender clause had become a law. He was 
extremely and avowedly averse to this clause, but was very solicit- 
ous for the passage of the bill to authorize United States notes then 
pending. He thought it indispensably necessary that the authority 
to issue .these notes should be granted by Congress. The passage of 
the bill was delayed, if not jeoparded, by the difference of opinion 
which prevailed on the question of making them a legal tender. It 
was under these circumstances that he expressed the opinion, when 
called on by the Committee of Ways and Means, that it was neces- 
sary ; and he was not sorry to find it sustained by respected courts, 
not unanimous faideed, nor without contrary decisions of State courts 
equally respectable. Examination and reflection under more pro- 
pitious circumstances have satisfied him that this opinion was erro- 
neous, and he does not hesitate to declare it. He would do so just 
as unhesitatingly if his favor to the legal tender clause had been at 
the time decided, and his opinion as to the constitutionality of the 
measure clear." 



LATE CHIEF JUSTICE CHASE. 29 

This statement of the Chief Justice, which has never be- 
fore been made public, explains any apparent conflict of view 
between his financial and judicial opinions, and sliows his judg- 
ment to have been tliat the legal tender clause was rather a 
necessity to the prompt passage of the currency bill than to its 
successful operation if passed without it ; for he says in the 
course of his opinion that this clause was a confession on the 
part of the government that the notes would not be received 
except by compulsion, aud that the tendency of such a confes- 
sion was to depreciate the value of the currency and the credit 
of the country. 

Candor that was Great as Rare. 

The statement also exhibits in the character of the Chief 
Justice that rare quality of public men, the candor to confess 
past doubt and indecision when once grounded in judgment 
and confirmed in opinion by better opportunities for reason 
and reflection. The pressure of events in public affairs, espe- 
cially under the circumstances of this case, may well excuse 
assent without the sanction of judgment by a public oflicer, 
when dissent is the exception, and the popular voice demands 
the concession, the dift'erence of opinion being of less moment 
than united and immediate action. 

Validity of Prior Contracts Affecting Slave Property. 

An important question following emancipation was upon 
the validity of prior contracts affecting property in slaves; 
and the case of Osborn v. Nicholson, from Arkansas, disposed 
of it, with the concurrence of the Chief Justice, in a just and 
satisfactory manner. The decision was — Mr. Justice Swayne 
delivering the opinion of the court — that negro slavery having 
been recognized as lawful at the time and the place of the con- 
tract, and the contract having been one which at the time when 
it was made could have been enforced in the courts of every 
State in the Union, and in the courts of every civilized country 
elsewhere, the right to sue upon it was not to be considered as 
taken away by the Thirteenth Amendment, passed after rights 
under the contract had become vested, the destruction of vested 
rights by implication never being presumed. 



30 THE JUDICIAL RECORD OF THE 

Sovereignty in the Territories. — Measure of Self-Gov- 
ernment conceded to the people. 

The case of Clinton y. Englebrecht, bringing to this court 
for decision the contest between the Territorial and United 
States marshals in Utah concerning the summoning of juries, 
establishes an important principle in respect of Territorial 
organizations, which is of sufficient interest to be set forth 
here. It was held — the Chief Justice delivering the opinion — 
that the theory upon which the various governments for por- 
tions of the Territory of the United States have been organ- 
ized, has ever been that of lea^dng to the inhabitants all the 
powers of self-government consistent with the supremacy and 
supervision of the national authority, and with certain funda- 
mental principles established by Congress. And the fact that 
judges of the District and Supreme courts of the Territories 
are appointed by the President under acts of Congress, does 
not make the courts which they are authorized to hold " courts 
of the United States." Such courts are but the legislative 
courts of the Territory, created in virtue of the clause which 
authorizes Congress to make all needful rules and regulations 
respecting the Territories belonging to the United States. 
Accordingly, jurors summoned for duty therein under the acts 
of Congress applicable only to courts of the United States 
created under the article of the Constitution which relates to 
the judicial power, are wrongly summoned, and a judgment on 
their verdict, if properly objected to, cannot be sustained. 
This was a victory for the Territorial officers over the marshal 
of the United States, and even over the judges of the courts — 
for the latter had sustained the proceedings of the former — 
and is a judicial enforcement in a modified form of the old-time 
theory of squatter sovereignty, or of the rights of the settlers 
in the Territories to manage their own affairs in their own 
way. And it is said that the " Trustee in Trust of the Church 
of Jesus Christ of Latter-day Saints " regarded it as sanction- 
ing the right of the people of the Territory to establish such 
domestic institutions as they choose, including polygamy. But 
whether it extends to that extremity will better appear in the 
light of future events. 



LATE CHIEF JUSTICE CHASE. 31 

Construction of the Thirteenth and Fourteenth Amend- 
ments. — The Question of Monopoly. — Rights of Citizens. 

The last great question in the decision of which the Chief 
Justice participated was but recently decided, in the Slaughter- 
House cases from Louisiana, placing a construction upon the 
Thirteenth and Fourteenth Amendments. In those cases it was 
complained that the Legislature of Louisiana had chartered a 
slaughter-house company, granting, among other exclusive 
privileges, for a period of twenty-five years, to seventeen per- 
sons, the right to establish and maintain stock-yards, landing- 
places, and slaughter-houses for the city of New Orleans, at 
which all stock must be landed, and all animals intended for 
food must be slaughtered. This charter was attacked as creat- 
ing a monopoly so effectual as to deprive the butchers of the 
State of the right to continue the business of their lives, un- 
less they would submit to such terms as might be imposed by 
the company. And this, it was maintained, was in violation of 
the Thirteenth Amendment, which forever prohibits slavery 
and involuntary servitude in the United States ; the argument 
being that the seventeen persons composing the company were 
the doTninants of the business monopolized, and the butchers 
of the State its servients, in such a manner and to such a de- 
gree as to render them the involuntary subjects and slaves of 
an artificial person representing the authority of the State. It 
was in contravention of that provision of the Fourteenth 
Amendment which declares that " no State shall make or 
enforce any law which shall abridge the privileges or immuni- 
ties of citizens of the United States, nor shall ?a\y State de- 
prive any person of life, liberty, or property without due pro- 
cess of law, nor deny to any person within its jurisdiction the 
equal protection of the laws." 

The opinion of the court, delivered by Mr. Justice Miller, 
stated in brief, sustained the grant of privilege contained in 
the charter, under the conditions and limitations imposed, as 
being a police regulation within the power of the State Legis- 
lature, unaffected by the Constitution of the United States 
previous or subsequent to the Thirteenth and Fourteenth 
Amendment^ It was not affected by the Thirteenth Amend- 



*l 



32 THE JUDICIAL RECORD OF THE 

ment, which refers to and is applicable only to personal servi- 
tude and not to servitude attached to property, and had for its 
direct object the permanent freedom of the negro race. Nor 
was it affected by the Fourteenth Amendment, which distin- 
guishes between citizenship of the United States and citizen- 
ship of the States, and refers only to the privileges and immu- 
nities of citizens of the United States, and not to the privi- 
leges and immunities of citizens of a State (rights of property, 
etc.), and was not intended to protect the citizen of a State 
against tlie legislation of tlie State. The objection that the 
State has deprived the butchers of liberty and property with- 
out due process of law was held to be unsound under former 
judicial interpretations of the Fifth Amendment, whicli con- 
tains a similar prohibition ; and the clause prohibiting the 
States from denying to any person the equal protection of the 
laws was construed as being intended only for the protection 
of the negro against partial legislation by the States. 

The Chief Justice Opposed to Monopolies. — Assents that 
THE Fourteenth Amendment places the Common Rights 
OF American Citizens under the Protection of the 

National Government. 

The Chief Justice concurred in a dissenting opinion deliv- 
ered by Mr. Justice Field, holding, in substance, that the 
slaughter-house company is an odious monopoly, exceeding the 
limits of the police power of the State, swallowing up the 
right to pursue a lawful and necessary calling previously en- 
joyed by every citizen ; and tliat if such exclusive privileges 
can be granted to seventeen persons, they may, in the discretion 
of tlie Legislature, be equally granted to one individual. And 
if they may be granted for twenty-five years, they may equally 
be granted for a centuiy, and in perpetuity. Conceding the 
force of the argument made by counsel for the petitioners 
under the Thirteenth Amendment, it was not considered neces- 
sary to the disposition of the cases in their favor to accept it 
as entirely correct. But the Fourteenth Amendment was re- 
garded as covering the whole question. It was adopted to 
obviate objections to the Civil Rights act, and to place the com- 



LATE CHIEF JUSTICE CHASE. 



33 



mon rights of American citizens under the protection of the 
national government. A citizen of a State, by virtue of that 
amendment, is now only a citizen of the United States residing 
in that State. The fundamental rights, privileges, and immu- 
nities which belong to him as a freeman and a free citizen now 
belong to him as a citizen of the United States, and are not 
dependent upon his citizenship of any State. They do not 
derive their existence from State legislation, and cannot be 
destroyed by its power. 

Under the Fourth Article of the Constitution, providing 
that '- the citizens of each State shall be entitled to all privi- 
leges and immunities of citizens of the United States," no 
State could create a monopoly in any known trade or manufac- 
ture in favor of its own citizens, or any portion of them, which 
would exclude an equal participation in the trade or manufac- 
ture attempted to be monopolized by citizens of other States. 
And what that clause does for the protection of citizens of one 
State against the creation of monopolies in favor of citizens of 
other States, the Fourteenth Amendment does for the protec- 
tion of every citizen of the United States against the creation 
of any monopoly whatever. The privileges and immunities of 
citizens of the United States, of every one of them, wherever 
resident, are secured against abridgment in any form by a 
State. The Fourteenth Amendment places them under the 
guardianship of the national government. All monopolies in 
any known trade or manufacture are an invasion of these priv- 
ileges, for they encroach upon the liberty of citizens to acquire 
property and pursue happiness, and were held void at common 
law in the great case of Monopolies decided in the reign of 
Elizabeth. To citizens of the United States everywhere, all 
pursuits, all professions, all avocations, are open, without other 
restrictions than such as are imposed equally upon all others of 
the same age, sex, and condition ; and the Fourteenth Amend- 
ment makes it essential to tlie validity of the legislation of 
every State that this equality of right shall be respected. 

The opinion concludes with an expression of regret that 
the validity of the legislation in Louisiana — so widely depart- 
ing from the principle of equality — is recognized by a majority 
of the court ; for by it, it is declared, the right of free labor, 
5 



34 THE JUDICIAL RECORD OF THE 

one of the most sacred and imprescriptible rights of man, is 
violated.* 

Woman's Right to Practice the Professions. — An Adverse 
Opinion Sanctioned by the Sex. 

A case of some significance, decided at the same time, and, 
in effect, by the same opinion, was that of Mrs. Bradwell, of 
Illinois, who sought to be admitted as an attorney in the courts 
of that State, and was refused by the Supreme Court on the 
ground that females are not eligible under the laws of the 
State. The judgment was affirmed here, Mr. Justice Miller 
delivering the opinion, which held that the right to practice 
law iii the State courts is not a privilege or immunity of a 
citizen of the United States within the meaning of the Four- 
teenth Amendmeut, and that the power of a State to prescribe 
the qualifications for admission to the bar of its courts is un- 
affected by that amendment, and this court cannot inquire 
into the reasonableness or propriety of the rules it may pre- 
scribe. 

Justices Swayne, Field, and Bradley concurred in the judg- 
ment, but not for the reasons assigned in the opinion of the 
court ; and Mr. Justice Bradley read an opinion setting forth 
their views, denying " that it is one of the privileges and im- 
munities of women as citizens to engage in any and every pro- 
fession, occupation, or employment in civil life." 

The Chief Justice Leaves no Record of His Views. 

The Chief Justice dissented from both of these views, but 
left of record only that fact to attest his own.f It is known, 



* This decision revolutionized the Court ; causing Mr. Justice Miller, the 
sturdy supporter of strong government, and Mr. Justice Field, the steadfast 
friend of State Rights, to appear to have exchanged positions. 

\ The following from Mr. Justice Bradley, under date of 22d August, 1873, 
furnishes the only inkling of the views of the Chief Justice on the question raised 
by this case the author was able to obtain ; and as it states very concisely and 
clearly the gist of the opinions read, it is given as a note to the case : 

" I am afraid I cannot give you any light on Chief Justice Chase's views on 
the question of woman's right to practice the learned professions, except this : 
that I know he believed in the right, and on that ground would have dissented 
from the judgment of the court if necessary. On what ground he thought the 



LATE CHIEF JUSTICE CHASE. 35 

however, that he did prepare a written dissent, in which he 
briefly reviewed the two opinions, and arrived at the conclu- 
sion that no principle xoas invol/oed in the decision. The dis- 
sent was based upon the same objections to the construction 
placed upon the Fourteenth Amendment bv a majority of the 



point not involved in the Myra Bradwell case, I do not know, having never heard 
him say. The position of the other judges, in brief, was this : Without deter- 
mining the question wliether a woman is entitled by right, as a citizen of the 
State, to follow all lawful pursuits, and enjoy all privileges enjoyed by men — five 
judges, Clifford, Miller, Davis, Strong, and Hunt, held, that the United States 
tribunals have no jurisdiction either before or since the Fourteenth Amendment 
to determine such a question, or any question concerning the rights of the citi- 
zen, except federal rights, i. e., rights expressly given by the Constitution or laws 
of the United States, and except where the United States tribunals are sitting as 
judges of State law ; and the other three, Swayne, Field, and Bradley, held that 
it is a matter within the powers of the State Legislature to determine the status 
of woman in the civil state ; and that having determined it, the Supreme Court 
cannot change it. Our judgment was based on the idea that the Fourteenth 
Amendment only guaranteed against State invasion either of rights expressly 
given by the Constitution and laws of the United States, or fundamental rights 
attaching to all citizens as such ; and that the right of woman to participate in 
all civil employments is not a fundamental right beyond the power of the State 
Legislature to regulate." 

In this connection it may be related, that while the opinion of Justice Bradley, 
so far as it dealt with the merits of the case, doubtless as fully reflected the 
views held by the judges whose concutTence authenticated tlie judgment, as it 
did those entertained by the judges who expressly joined in it, and was thus 
unanimous on the main question, except as to the Chief Justice, the author 
happens by chance to know that it had the still higher sanction of the sex most 
concerned in the decision, through one whose distinguished social position, high 
character, and eminent good sense entitled her opinion to be regarded as an ex- 
ponent of its views, in so far, at least, as they may be deemed to emanate from 
approved intelligence and worth. 

In a conversation touching the case and his opinion, while this paper was in 
course of preparation. Justice Bradley playfully remaiked that he was the better 
satisfied with it because it had the appi-obation of his wife, who, on having the 
question pi-eseuted to her, expressed her views very decidedly and emphatically 
against the idea of women becoming or practicing as lawyers ; and declared that 
it was abhorrent to all the finer feelings of delicacy that ought to characterize 
every pure and respectable woman. He looked upon these utterances, he said, as 
the spontaneous expression of womanhood, and for that reason he thought them 
of value. 

As this fact, hitherto remaining a social secret, has much public interest as 
an incident of the case, and special significance for the ladies. Justice Bradley 
has considerately consented that it may be stated, kindly undertaking to answer 
to Mrs. Bradley for the allusion. 



36 THE JUDICIAL RECORD OF THE 

court which Avei'e stated by Mr. Justice Field in the Slaiighter- 
House cases. And it was declared that no principle was es- 
tablished by the decision, because it did not touch upon the 
great social question lying at the foundation of the proceeding 
— the right of women — under the Constitution of the United 
States, as amended — to engage generally in the professions and 
occupations of civil life — but only decided the question of the 
effect of the Fourteenth Amendment upon the status of the 
petitioner as a citizen of a State. 

By this dissent the Chief Justice revealed no new judicial 
conviction nor political sympathy ; but his non-concurrence 
with Justices Swayne, Field, and Bradley may be considered as 
equivalent to an assertion of the rights and relations which 
they denied. 

Magnitude of the Issues Decided. 

We have now reviewed the leading cases in the record of the 
late Chief Justice as fully as the purposes of a popular article 
would admit of, referring only to others of almost equal im-. 
portance which it has been impossible to notice ; and it is un- 
hesitatingly submitted to his countrymen that none of his pre- 
decessors were ever called upon to consider questions so grave, 
so pervading and far-reaching in their consequences, as some 
of those here presented — questions which go to the foundation 
and structure of the government, and touch its very right 
to exist ; which led to its origin, have attended its progress, 
and will pursue its future — questions which proceed not alone 
from union and peace, with which all our judges are more or 
less familiar, but grow out of the conditions of disunion and 
war, and affect society and the people in their dearest interests 
and most sacred rights — those exposed to danger and liable to 
be trampled upon and extinguished in times of public peril. 

Singular Good Fortune of the Chief Justice. 

It was the great good fortune of the Chief Justice to sur- 
vive until all the issues of the war were settled, and to partici- 
pate personally in their deteianination ; and the impartial man- 
ner in which he passed upon them — so far as man may be 
impartial — condemning, as we have seen, in a notable instance, 



> 



LATE CHIEF JUSTICE CHASE. 37 

one of the most conspicuous measures of his own administra- 
tion of a department of the government, is the highest evi- 
dence of his devotion to justice and fidelity to the country, 
and the best illustration of his noble qualities as a freeman 
intent upon preserving the rights of freemen. Magistratus 
indicat virum. 

Future Value of His Adjudications and Example. 

His opinions will largely control political questions in fu- 
ture republics, and form the chief bulwark of the people in 
seasons of danger, as they are mainly directed to the discussion 
and elucidation of principles entering into the civil polity of 
such governments, and particularly affecting their administra- 
tion in time of war ; and they must necessarily be in many in- 
stances, from the peculiar nature of the cases considered, sole 
precedents in point. They will be cited abroad and studied at 
home with equal profit to the profession, benefit to the bench, 
and advantage to the people. And should those who come 
after him seek a mould in which to cast judicial composition, 
or a type upon which to form judicial character, they may rest 
upon his writings, and build upon his virtues. And should 
ambition further pursue the secret of high career, and ask a 
chart of judicial life, it may still be pointed to the vacant chair 
of the Chief Justice, and receive for answer the matchless re- 
ply which Euripides relates was made to Zeno by the oracle 
at Delphi, upon his inquiry in what manner he should live — 
" That question should be addressed to the dead." 



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